Sanctions, compensations, international jurisprudence: what has been done by the end of the second year of the great war

The year 2023 was no less eventful than 2022: battles continued and continue not only on the front lines, but also in offices of all kinds. Hundreds of meetings on different continents had and have one goal: punishment for the aggressor and compensation for all victims. Our 24/7 work at the edge of human powers has paid off.

What was discussed only in whispers in 2022, in 2023 sounded loud. The world community unanimously agreed that Russia should bear responsibility for the damage and harm caused to Ukraine and Ukrainians by Russia's aggression. According to the results of 2023, it can be stated that foreign experts, opinion leaders, and leading jurisprudence specialists have come a long way from doubting the possibility of using seized Russian assets to pay compensation to Ukrainian war victims, to changing legal dogmas and supporting the idea of ​​overcoming sovereign immunity.

What is currently the main thing (in the compensation track) and what the international legal community worked with during 2023 was and is the fastest possible launch of the International Compensation Mechanism. So, step by step:

International compensation mechanism:

Ukraine entered 2023 with unprecedented legal support for the Compensation Mechanism. The majority of the UN General Assembly on November 14, 2022 established the legitimacy of all elements of the mechanism, which includes: the Register of Losses, the Commission for Assigning Payments and the Compensation Fund. As a whole, this decision, developed by Ukrainian experts based on the experience of other countries, allows to develop a fair system of compensation payments under independent international supervision and without waiting for the consent of the aggressor country.

It all started developing very quickly. On February 17, the Register of Damages received its home in a very symbolic city, the city of justice, in The Hague, the Government of the Netherlands agreed to Ukraine's proposal to create an international organization. On May 17 (already a magical date for Ukraine), a fundamental event for the International Compensation Mechanism took place at the Council of Europe Summit: an agreement on the Register of Damages was signed. Currently, 43 countries and the European Union have joined the treaty on the International Register of Losses. Recent signatories include Switzerland. The Ukrainian team plans to attract to the Register as many as possible out of those 94 countries that voted for the Compensation Mechanism at the UN.

Already at the First Conference of the countries participating in the Register, which took place on June 27 (also a mysterious seven), the Executive Director of the Register Markiyan Klyuchkovskyi was appointed, as well as the preliminary expenses for the operations of the Register, administrative matters like the premises were allocated, and the reception of candidates for the members of the Register Council was announced . It was at the Third Conference, which took place in mid-November, that the members of the Council of the Register of Damages were elected (according to the Statute of the Register there should be 7, including one candidate from Ukraine). The Register Board link: https://www.coe.int/en/web/portal/-/conference-of-participants-of-the-register-of-damage-for-ukraine-elects-its-board.

We are waiting for the approval of the rules and procedures of the international Register of losses and categories of losses in the nearest future. Recently, the Government of Ukraine, at the request of the Ministry of Justice, proposed ready-made categories of damages, which the International Register can take as a basis when developing its categories. In the second quarter of 2024, we expect the global launch of the Register.

So far, the most difficult issue remains the filling of the Compensation Mechanism Fund. The basis for compensation payments should be the seized assets of the aggressor country and sanctioned persons. At the moment, there are about $300 billion of such funds in various countries of the world (frozen assets of the Central Bank of the Russian Federation). However, the confiscation and transfer of these assets to Ukraine requires political will from many countries of the world. And we desperately need strong US leadership in the G7 and other organizations to make Putin pay for his violations of international law.

Nevertheless, there are positive dynamics in the domestic politics of the leading states. And here the USA and Canada have made significant progress. Ukraine desperately needs the US Congress to pass the REPO for Ukrainians Act (H.R. 4175) and (S 2003); and Canada - SEMA Amendment Bill. Others will follow the example of the world's leading countries.

The statement of the president of the European Commission, Ursula von der Leyen, about the transfer of profits from the management of frozen Russian funds to Ukraine, which can amount to at least €3 billion per year, also adds to the optimism.

So far, partners have delayed confiscation due to a number of legal, political and economic reasons. However, thanks to the powerful advocacy of Ukrainians, they were refuted.

Legally: the confiscation is legitimate, because it is a justified countermeasure in response to Russian aggression, and a measure of collective self-defense. Politically: third countries have no reason to fear for their assets in the West. Russian aggression is unique: from violation of the UN Charter, the Budapest Memorandum, international law to gross war crimes today. Economically: today there is no real alternative to Western reserve currencies (US dollar - 59%, Euro - 20%, Japanese yen and British pound - 5% each, Chinese yuan - 2%, others - 9%).

So, we fly at the third cosmic speed to bring the aggressor to justice and give the victims a mechanism to receive compensation.

Sanction policy:

On September 1, 2022, the High Anti-Corruption Court made the first decision to confiscate the property of a sanctioned Russian citizen in Ukraine. The assets of the oligarch Yevtushenkov, who was sanctioned by the decree of the President of Ukraine, were collected from the state income. Prior to this decision, the Supreme Anti-Corruption Court and then during the year the Ministry of Justice, the unit's team did a titanic job:

- 38 lawsuits to the Supreme Anti-Corruption Court for recovery of assets from state income;

- 32 decisions have entered into legal force, the rest are in Appeal or at the stage of acquiring legal force;

- under consideration by the Supreme Administrative Court (regarding persons with significant assets): a lawsuit against Babakov and the VS Energy group, Khudainatov, a lawsuit against JSC "HMS GROUP", Tsoi, Lukyanenko, Leontiev, Kalonov, Semenchev, Cherevka with objects, in particular, in the energy , industrial, hotel industries, a lawsuit against "Royal Pay" LLC for recovery of funds in the amount of more than UAH 1.8 billion.);

- 658 – the number of sanctioned persons with assets in Ukraine, with grounds for sanction of recovery – 119. Forty-three of them – with significant assets;

- The USA is already preparing to hand over to Ukraine $5.4 million confiscated from the Russian oligarch Malofeev due to sanctions evasion.

And several dozen companies, including those of strategic importance for the country's economy, hundreds of immovable objects and thousands of objects of movable property worth billions of hryvnias, and cash in the amount of 130 million hryvnias. All these decisions are transferred to international partners to mirror these sanctions in their jurisdictions.

I will not tell you how painstaking and difficult this work is. After all, it is necessary to find an evidence base, to prove legality in the courts, to obtain a final decision.

Restoring Justice Peace Formula:

On August 17, 2023, together with the Prosecutor General of Ukraine, they headed the Working Group "Restoration of Justice". We are talking about the development and implementation of a set of actions regarding the implementation of Clause 7 of President Zelenskyi's Peace Formula. Our goals: Compensation to all victims; National and international justice (investigation and prosecution of war crimes, crimes against humanity, the crime of genocide, and the most important punishment for the crime of aggression); Tough sanctions policy. Our work requires close cooperation with partner countries. We already had the opportunity to present the main action plan on September 29 in Kyiv, during the meeting of ambassadors, heads of foreign representations and missions accredited in Ukraine, on the anniversary of the events in Babyn Yar.

In October, the action plan was presented to our partners at the Ministerial side event on responsibility "Upholding the principles of the UN Charter: Restoration of Justice for Ukraine" during the week of the 78th UN General Assembly.

European Court of Human Rights:

On January 25, 2023, the ECtHR recognized the Russian Federation's jurisdiction over the territories in Donbas, which have been under the control of the so-called "DPR" and "LPR" since May 11, 2014, and found admissible the accusations of human rights violations related to the downing of flight MH17. The complaints of the relatives of the victims were also found admissible.

This decision was preceded by the admissibility of the joint international case "Ukraine and the Netherlands v. Russia", which also concerns Russia's role in the downing of flight MH17. Now the Court continues the consideration of the case "Ukraine and the Netherlands v. Russia" on the merits.

Preparations for the hearing on the merits of the largest interstate lawsuit "Ukraine vs. Russia", which Ukraine filed in June 2022, are in the final stage. The hearing is expected in the spring of 2024.

At the end of 2023, in December, a meeting of the ECtHR was held, where our team represented the position of the Government of Ukraine on the merits in the interstate case "Ukraine v. Russia" regarding Crimea under Nos. 20958/14 and 38334/18. This interstate case is very important and complex, after all, like all interstate cases of Ukraine against the Russian Federation in the ECtHR. Russia's open aggression and occupation of the Ukrainian Crimea began precisely from the violations that Ukraine complains about in the framework of this case. The decision of the ECtHR gives Ukraine a powerful weapon for use in the international arena, it can be used to put additional pressure on Russia, introduce new sanctions on various levels, as well as prove Russia's responsibility for human rights violations in the temporarily occupied territory of the Ukrainian Crimea. And, as a result, compensation within the framework of an interstate application, numerous individual applications, as well as international arbitrations.

In general, all decisions of the ECtHR are of decisive importance for the ongoing investigations of crimes committed by the Russian Federation during the Russian full-scale aggression. They are also important for other proceedings, especially those heard in international courts after February 24, 2022, from the moment of the full-scale invasion of Ukraine.

International jurisprudence:

- On March 15, the Supreme Court of Great Britain passed a decision on the case of Eurobonds in the amount of 3 billion dollars, which were issued by Ukraine in December 2013. The "Yanukovych bonds/debt case" is one of those cases where Ukraine, represented by the Ministry of Finance of Ukraine, defends its interests against the Russian Federation. The aggressor country tried to economically crush Ukraine with this case, but the court did not support its position. The judges decided that the plaintiff does not have the right to obtain a decision to collect $3 billion from Ukraine and interest under a simplified procedure. Instead, Ukraine is allowed to prove before the court of first instance (the High Court of Justice of England and Wales) the presence of coercion on the part of the Russian Federation. The court also decided that the defense of Ukraine regarding the presence of legal capacity and competence to issue bonds, as well as regarding countermeasures, cannot be claimed by the defendant.

- On March 17, an unprecedented event took place: the judges of the International Criminal Court issued an arrest warrant for the President of Russia, Putin, and Maria Lvova-Belova, the Commissioner for Children's Rights under the President of Russia. This decision became historic for Ukraine and the entire system of international law. The world has confirmed that the Russian regime is criminal, and its leadership and henchmen will be held accountable.

- At the beginning of July, in The Hague, in coordination with the Office of the Prosecutor General of Ukraine, the International Center for Prosecution for the Crime of Aggression against Ukraine (ICPA) began its work. This is the first step towards the International Tribunal for the leadership of the Russian Federation.

- In September, the UN International Court of Justice resumed hearings in Ukraine's lawsuit against Russia regarding the Genocide Convention. In the lawsuit, colleagues from the Ministry of Foreign Affairs demand that the Russian Federation be held accountable for distorting the concept of "genocide." A decision on the jurisdiction of the case is awaited.

- The return of "Scythian gold" to Ukraine is a great achievement. This is an unprecedented event, a great victory for Ukraine in the diplomatic, legal, judicial and cultural fields. The Supreme Court of the Netherlands made a decision on the "Scythian Gold" case, satisfying Ukraine's claims in full.

- At the end of the year, we received good news from Britain. The High Court of Justice of England and Wales recognized the decision of the Hague Arbitration regarding compensation of $5 billion to Naftogaz for the assets seized by Russia in the Crimea.

As well as continuous advocacy of the country's main initiatives in international jurisprudence at numerous conferences, forums, and summits. And these are dozens of business trips to the countries of Europe, the USA, and Canada with hundreds of high-level meetings.

All our achievements, small and big victories, are the result of hard work. And most of them are thanks to the continuous, coordinated work 24/7 of the Ministry of Justice of Ukraine. Yes, we announce the results, but few people know what our result consists of, how difficult it is, sometimes despite everything possible and impossible, we go to it. But, no one thinks, because everyone works with great motivation, for victory. And we confidently look to the next year - 2024, because we have to do our job: defeat the enemy, punish, restore justice and receive compensation.